A widely shared rumor among federal criminal defense bars holds that Barrett v. United States would force the Supreme Court to decide, by late June 2026, whether 18 U.S.C. § 922(g)(1) survives the Court's post-Bruen Second Amendment framework. That is incorrect. Barrett is a double jeopardy case about 18 U.S.C. § 924(c) and § 924(j). It has nothing to do with felon-in-possession or the Second Amendment.
The confusion matters because federal defenders representing clients in pending § 922(g)(1) prosecutions need to know what is actually live at the Court, what is not, and how to preserve constitutional challenges that the Justices have so far declined to resolve.
What Barrett actually decided
On January 14, 2026, the Court issued its opinion in Barrett v. United States, No. 24-5774. The question presented, as confirmed by the Cornell LII docket and the Oyez case page, was whether a single act that violates both § 924(c) (using a firearm during a crime of violence or drug trafficking crime) and § 924(j) (causing death through that same use) permits cumulative sentences. The case was argued October 7, 2025. The holding addresses unit-of-prosecution and Double Jeopardy Clause concerns. Section 922(g)(1) does not appear in the question presented, the briefs, or the opinion.
The confusion likely traces to two unrelated developments running in parallel: the high volume of § 922(g)(1) cert petitions sitting on the Court's docket in early 2026, and a separate cert grant in Beaird v. United States that involves a § 922(g)(1) defendant but does not reach the Second Amendment question.
Why § 922(g)(1) remains in limbo
Since New York State Rifle & Pistol Association v. Bruen (2022) replaced means-end scrutiny with a text-and-history standard, and since United States v. Rahimi (2024) softened the most absolutist readings of Bruen, every federal firearms prohibition has been re-litigated. Section 922(g)(1), which bars anyone convicted of a crime punishable by more than one year in prison from possessing a firearm or ammunition, sits at the center of that wave.
The Supreme Court has had ample opportunity to resolve the question. According to the March 2026 SCOTUSblog relist watch, the Court denied review in more than seventy § 922(g)(1) petitions in early 2026. Several were relisted multiple times before being denied. The pattern signals reluctance, not readiness.
The Congressional Research Service has tracked the divergence in detail. Its report "Courts Disagree as to Whether the Federal Felon-in-Possession Firearm Prohibition Violates the Second Amendment" walks through the live circuit split, and a parallel CRS report on "The Second Amendment at the Supreme Court" documents the Court's repeated cert denials in this area.
Beaird v. United States: the real live vehicle, but a narrow one
The only § 922(g)(1) defendant whose case the Court did take is Antonio Beaird. The Court granted certiorari in Beaird v. United States, No. 25-5343, on April 20, 2026. Defenders watching only headlines could be forgiven for assuming the Second Amendment question was on the table. It is not.
Beaird's cert petition presented several questions, including a Second Amendment as-applied challenge and a Commerce Clause challenge to § 922(g)(1). The Court granted only one: whether Stinson v. United States, 508 U.S. 36 (1993), still controls the deference courts owe to Sentencing Guidelines commentary. A practitioner alert from ArentFox Schiff confirms the limited scope of the grant.
In practical terms, Beaird will reshape how Sentencing Guidelines enhancements are interpreted across federal criminal practice. That includes enhancements that frequently appear in § 922(g)(1) sentencings, such as those tied to large-capacity magazines, prior controlled substance offenses, and stolen firearms. It will not decide whether the underlying ban survives the Second Amendment.
The circuit split, mapped
Two sides of the split now exist, and the gap is widening rather than narrowing.
On the side recognizing as-applied challenges, the Third Circuit's en banc decision in Range v. Attorney General held that § 922(g)(1) could not constitutionally be applied to a man whose disqualifying conviction was a decades-old misrepresentation on a food-stamp application. The Fifth Circuit has reached similar results in particular as-applied postures. Both circuits require the government to identify a Founding-era analogue for disarming the specific class of person before the court, not for disarming felons in the abstract.
On the side upholding the statute broadly, the Ninth Circuit went en banc in United States v. Duarte and rejected an as-applied challenge, an outcome analyzed in a Harvard Law Review case comment and summarized for practitioners by Federal Defenders. The Fourth, Eighth, Tenth, and Eleventh Circuits have similarly upheld § 922(g)(1) against as-applied challenges. The Tenth Circuit's approach was tracked in a February 2025 NRA-ILA analysis, which framed the decision as a sidestep of Bruen's text-and-history methodology.
The CRS report on circuit splits as of January 2026 lists § 922(g)(1) as one of the most consequential unresolved divisions in federal criminal law.
Preserving the as-applied challenge: what the record needs
Until the Supreme Court takes a clean vehicle, the protective motion remains essential. A defender preserving an as-applied Second Amendment challenge in a § 922(g)(1) prosecution should build a record that captures:
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The nature of the predicate conviction. Was it violent or nonviolent? Mala in se or regulatory? A Range-style challenge depends on the predicate looking unlike the disarmament categories with Founding-era analogues.
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The age of the predicate. A conviction from decades ago, with no intervening violent conduct, strengthens the as-applied argument. A recent conviction weakens it.
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The specific statutory subsection of the prior. Drug possession, paper fraud, and regulatory offenses generally present the strongest as-applied facts. Prior violent crimes, prior weapons offenses, and crimes involving threats generally present the weakest.
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The factual circumstances of the current possession charge. The Court in Rahimi emphasized dangerousness. Records showing non-dangerous possession read differently than records showing a loaded firearm during a drug transaction.
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Mens rea preservation under Rehaif v. United States, 588 U.S. ___ (2019), No. 17-9560. Even where the constitutional argument fails, the knowledge-of-status element remains a contested factual issue that should be developed at trial and preserved for appeal.
Which priors are the strongest as-applied candidates
Under Range-style analysis, the most viable as-applied candidates share several features. The predicate is nonviolent. It is remote in time. It is regulatory or paper in nature rather than directed at a person. Examples that have shown traction include old benefits fraud, certain tax offenses, simple drug possession from years past, and one-off paper fraud convictions.
The weakest candidates involve recent priors, violent priors, prior firearms offenses, prior crimes involving threats or weapons, and priors with patterns of escalation. Even in circuits more receptive to Range, courts have declined to extend the holding to defendants whose records suggest continuing dangerousness.
What to watch in OT2026
Two threads matter for the coming term.
First, whether a clean § 922(g)(1) vehicle reaches the Court. The denied petitions in early 2026 do not foreclose a future grant. A circuit split this wide tends to draw the Court eventually. Defenders should keep filing protective motions because the issue must be preserved, not because resolution is imminent.
Second, the downstream effect of Beaird on sentencing. If the Court limits or overrules Stinson deference to Guidelines commentary, sentencing enhancements that rest on commentary rather than on Guideline text itself become vulnerable. Several enhancements that frequently appear in § 922(g)(1) sentencings sit in that posture. The underlying ban may survive while the sentencing exposure shifts.
Bottom line for practitioners
Do not tell clients that the Supreme Court is about to vacate § 922(g)(1) by June. It is not. Barrett was a double jeopardy case and is now decided. Beaird is a Sentencing Guidelines case. The Second Amendment question survives in the circuits, where the answer depends heavily on where the case is filed and what the predicate looks like.
Keep filing protective motions. Build the record on the predicate. Track the Third and Fifth Circuits for the cases most likely to draw the next cert petition. And read Beaird carefully when it issues. The Sentencing Guidelines exposure in a § 922(g)(1) case may turn out to be the more immediately movable piece, even if the underlying conviction holds.
Related reading
Sources
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Barrett v. United States, No. 24-5774, slip op. (U.S. Jan. 14, 2026)
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Cornell LII Supreme Court Bulletin: Barrett v. United States
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SCOTUSblog Relist Watch: "Deja vu all over again" (Mar. 2026)
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CRS, "The Second Amendment at the Supreme Court: Challenges to Federal Gun Laws" (LSB11108)
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CRS, "Congressional Court Watcher: Circuit Splits from January 2026" (LSB11399)
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NRA-ILA, "Tenth Circuit Sidesteps Bruen with Nonviolent Felon Ruling" (Feb. 24, 2025)
Note: This article contains AI-assisted content and has been reviewed by our editorial team.
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